Opinion
Case No. 04-22913-CIV-UNGARO-BENAGES.
January 24, 2005
ORDER GRANTING DEFENDANT'S MOTION TO DISMISS COUNT II
THIS CAUSE is before the Court upon Defendant's Motion to Dismiss Count II, filed December 13, 2004.
THE COURT has considered the motion and the pertinent portions of the record and is otherwise fully advised in the premises.
Plaintiff has filed a response to Defendant's motion to dismiss and Defendant has not timely filed a reply in support of the motion. This matter is now ripe for adjudication.
By way of background, on November 17, 2004, Plaintiffs, who are husband and wife, filed a two-count complaint in the United States District Court for the Southern District of Florida alleging that on September 27, 2003, Plaintiff Lisa Marie Michaels was injured aboard the Sensation, a motor vessel owned and operated by Defendant, as a result of Defendant's negligence regarding the dangerous condition of the vessel's deck. Count One of Plaintiffs' complaint seeks compensatory damages for Plaintiff Lisa Marie Michaels' bodily injury, pain and suffering, disability, disfigurement, mental anguish, loss of capacity for the enjoyment of life, hospitalization, loss of earnings and of the ability to earn and aggravation of a previously existing medical condition. Count Two of Plaintiffs' complaint seeks compensatory damages for Plaintiff Robert Michaels' costs in missing work and in caring for and treating his wife as well as the amount of the "loss of services of his wife."
On December 13, 2004, Defendant moved to dismiss Plaintiff Robert Michaels' claim for damages resulting from the loss of consortium of his wife. In sum, Defendant argues that the general maritime law of the United States, which gives rise to Plaintiff's cause of action, does not recognize loss of consortium as an actionable injury. As such, the Court construes Defendant's motion pursuant to Federal Rule of 12(b)(6) and now considers whether Plaintiff has stated a claim for which relief may be granted.
When considering a motion to dismiss pursuant to Rule 12(b)(6), the Court must liberally construe the complaint in Plaintiff's favor, Jenkins v. McKeithen, 395 U.S. 411, 421 (1969), and may only grant the motion where it appears beyond doubt that Plaintiffs can prove no set of facts in support of their claims which could entitle them to relief, Conley v. Gibson, 355 U.S. 41, 45-46 (1957). Moreover, the Court must, at this stage of the litigation, accept the allegations contained in Plaintiffs' complaint as true. Hishon v. King Spalding, 467 U.S. 69, 73 (1984).
The Court considers first the substantive law governing Plaintiff's action. Defendant argues, and Plaintiffs do not dispute, that Plaintiffs' complaint arises under the general maritime law of the United States. Two facts support this conclusion. First, Plaintiffs' complaint represents that this Court possesses subject-matter jurisdiction over this action pursuant to 28 U.S.C. § 1333, which confers on the federal courts original jurisdiction over civil cases of admiralty or maritime jurisdiction. Next, Plaintiffs' complaint states that Plaintiffs boarded the Sensation on September 25, 2003 for a one-week cruise and states further that Plaintiff Lisa Marie Michaels' injury occurred two days later, leading reasonably to the conclusion that Plaintiff's injury occurred while the vessel was at sea. See Keefe v. Bahamas Cruise Lines, Inc., 867 F.2d 1318, 1320 (11th Cir. 1989) ("[T]he substantive law applicable to this action, which involves an alleged tort committed aboard a ship sailing in navigable waters, is the general maritime law, the rules of which are developed by the federal courts.").
Defendant states correctly that the Eleventh Circuit Court of Appeals in In re Amtrak "Sunset Limited", 121 F.3d 1421 (11th Cir. 1993), has rejected the proposition that personal injury plaintiffs may recover nonpecuniary damages under the general maritime law for loss of society, loss of consortium, and punitive damages. See also Lollie v. Brown Marine Serv., Inc., 995 F.2d 1565, 1565 (11th Cir. 1993) (holding that "general maritime law [does not] authorize recovery for loss of society or consortium in personal injury cases"). In "Sunset Limited", the court found that the spouses of nonseamen injured in state territorial waters could not recover nonpecuniary damages under the general maritime law of the United States, holding clearly that, absent certain inapplicable exceptions, "[u]nless or until the United States Supreme Court should decided to add state remedies to the admiralty remedies for personal injury, personal injury claimants have no claim for nonpecuniary damages such as loss of society, loss of consortium or punitive damages." "Sunset Limited", 121 F.3d at 1429. At least one other circuit court of appeals has adopted a similar legal conclusion under circumstances materially identical to those in the case at bar, holding that damages for loss of consortium are unavailable to the spouses of nonseamen who have suffered nonfatal injuries in international, rather than state territorial, waters. Chan v. Society Expeditions, Inc., 39 F.3d 1398, 1407-08 (9th Cir. 1994).
In response to this binding and persuasive authority, Plaintiffs make four counterarguments. First, Plaintiffs assert without explanation that "there is no 11th Circuit case which is directly on point." Plaintiffs argue that Lollie is not controlling because that case involved a seaman's claims under the Jones Act rather than, as here, a nonseaman's claims under general maritime law. Plaintiffs do not explain why the rule announced in "Sunset Limited" does not govern in this case. Plaintiffs then go on to make certain distinctions between the rights and remedies created by the Jones Act and those existing under the general maritime law. The Court need not reach these distinctions in order to reject Plaintiffs' first argument. The Eleventh Circuit's legal conclusions excerpted above apply, by their terms, to the availability of nonpecuniary damages under the general maritime law. As Plaintiffs' argument concedes implicitly, Plaintiff Robert Michaels' claim for loss of consortium purportedly arises under the general maritime law of the United States. In both Lollie and "Sunset Limited", however, the court held that this body of law does not create such a claim on behalf of the spouses of nonseamen who have suffered nonfatal injuries.
Plaintiffs argue next that the Court should not rely on Chan as persuasive authority because of the conflict between that case and the Ninth Circuit Court of Appeals' holding in Sutton v. United States, 26 F.3d 903 (9th Cir. 1994). Not surprisingly, Plaintiffs urge the Court to reject theses cases in favor of the Second Circuit in Wartman v. Commodore Cruise Lines, 100 F.3d 943, 943 (2d Cir. 1996), which stated in a one-page opinion that the rule in that circuit is "that under federal maritime law dependents may recover damages for loss of society." Apart from pointing out that Wartman reaches a conclusion that favors their case, Plaintiffs provide no discussion of the relative merits of the legal analysis of the Second and Ninth Circuit Courts of Appeal. After considering each, the Court finds first that Plaintiffs have overstated the conflict between Chan and Sutton. Chan, after considering the Jones Act, the Death on the High Seas Act ("DOHSA") and United States Supreme Court precedent regarding the damages available to nonseamen injured in state territorial waters and those injured in international waters, concluded that the general maritime law of the United States did not create a cause of action for the nonpecuniary injuries of relations of nonseamen who suffered nonfatal injuries in international waters. Chan, 39 F.3d at 1407-08. Sutton, after considering the same statutes and precedents, concluded that such damages were available to the relations of nonseamen suffering nonfatal injuries in state territorial waters. Sutton, 26 F.3d at 914-15. These cases are fully consistent with each other and with the distinction, recognized clearly by the Supreme Court in both Sea-Land Servs., Inc. v. Gaudet, 414 U.S. 573 (1973), and Mobile Oil Corp. v. Higginbotham, 436 U.S. 618 (1978), among the statutory and common-law remedies available for fatal and nonfatal injuries occurring either in international waters or in state territorial waters. Next, and dispositively, the Court finds that it is not now free to reject the thoughtful analysis of the Ninth Circuit in favor of Wartman's conclusory statement of the rule in the Second Circuit because Chan and, in fact, Sutton are consistent with binding precedent in this circuit-namely that the general maritime law does not create nonpeuniary causes of action in favor of the relations of nonseamen suffering nonfatal injuries in either international and state territorial waters.
Plaintiffs' third argument is that, contrary to the unambiguous terms of Lollie and "Sunset Limited", the United States Supreme Court has previously held that there is a cause of action for loss of consortium under general maritime law in American Export Lines v. Alvez, 446 U.S. 274 (1980). Alvez, however, stands for the much narrower proposition that general maritime law authorizes the wife of a harbor worker injured nonfatally aboard a vessel in state territorial waters to maintain an action for damages for the loss of her husband's society. Id. at 276. Moreover, the opinion of the Court in this case was written by Justice Brennan on behalf of a minority of four Justices, with Chief Justice Burger and Justice Powell joining only in the judgment of the Court affirming the lower Court's opinion. Accordingly, while the affirmance of the lower court's opinion-whose terms do not reach nonlongshoremen in international waters, such as Plaintiffs — is binding precedent, the Court's discussion in that case of the interaction between the Jones Act, DOHSA and the general maritime law is not and therefore does not displace the later opinions of the Eleventh Circuit in Lollie and "Sunset Limited". See Foster v. Board of School Comm'rs of Mobile Cty., 872 F.2d 1563, 1569 n. 8 (11th Cir. 1989) ("A plurality opinion [of the Supreme Court] is not binding on this Court, and we are compelled to follow both our prior precedent as well as prior Supreme Court precedent." (citations omitted)). Lollie, in particular, reaffirms that personal injury claimants do not possess a cause of action for loss of consortium under the general maritime law of the United States.
Fourth, and finally, Plaintiffs argue that state-law remedies may supplement the general maritime law in this case to allow a claim for nonpecuniary damages on behalf of Plaintiff Robert Michaels under Yamaha Motors Corp. v. Calhoun, 516 U.S. 199 (1996). However, that case, discussed at length by the Eleventh Circuit in "Sunset Limited", governs the remedies available to individuals injured in state territorial waters and their relations, and these remedies derive both from the general maritime law and the substantive law of the particular state or states whose territory is implicated. It does not appear from the face of Plaintiffs' complaint that Plaintiff Lisa Marie Michaels was injured while in state territorial waters and the Court, upon Defendant's motion, is not obliged to read this omitted, material fact into the complaint to favor Plaintiffs. Accordingly, it appears after a review of the record that Yamaha does not apply; furthermore, determining whether Yamaha would apply as envisioned by Plaintiffs, i.e., so as to confer upon a nonseaman's spouse the right to recover for loss of consortium resulting for a nonfatal injury, would require an additional determination of the state involved and its substantive tort law. Neither of these necessary facts are apparent from the face of Plaintiffs' complaint. For these reasons, Plaintiffs' general reliance on Yamaha does not compel a departure from the Eleventh Circuit's clear holdings in Lollie and "Sunset Limited".
For these reasons, the Court finds that Defendant has stated the law in this circuit correctly and concludes that Plaintiff Robert Michaels may not recover nonpecuniary damages, including loss of consortium, under general maritime law for Plaintiff Lisa Marie Michaels' nonfatal injuries caused by Defendant's negligence, if any. Accordingly, it is hereby
ORDERED AND ADJUDGED that Defendant's Motion to Dismiss Count II is GRANTED, and Plaintiff Robert Michaels' claims for nonpecuniary damages are dismissed under Rule 12(b)(6).
DONE AND ORDERED.